Oversight of Maine restaurants diminishes, just as complaints rise

Maine’s guidelines for overseeing restaurant safety were quietly scaled back last year, even as the number of health-related complaints about Maine restaurants has been on the rise.

An investigation by the Portland Press Herald/Maine Sunday Telegram has found that restaurant kitchens in Maine are subject to fewer inspections and less transparency than restaurants in much of the country. In addition, the state cannot track the most common food code violations or analyze trends and variations from one county to another.

Additional Photos

Scott Davis, a state health inspector, checks a walk-in cooler at the Stage Neck Inn in York Harbor. The Legislature scaled back the frequency of restaurant inspections to once every two years, making Maine’s rule among the most lax in the nation. Many other states require multiple inspections each year. Shawn Patrick Ouellette/Staff Photographer

• The number of complaints that led to restaurant inspections has increased 87 percent since 2008, including a 35 percent jump after the Legislature doubled the amount of time between mandatory inspections. Key lawmakers were not aware of the increase in complaints when they changed the law.

• Little information is readily accessible to the public about the cleanliness of restaurants, with Maine being one of a small number of states where no local or statewide authority posts inspection information online. If a restaurant fails an inspection or is deemed a health hazard and closed, it is not required to inform its patrons.

• State inspectors could not meet the state’s own mandate to conduct annual inspections, so the Legislature loosened the law to require an inspection once every two years. Other states require annual inspections, while many require multiple inspections each year.

• The state system for tracking restaurant inspections is seriously limited, erroneously listing some restaurants as public health hazards, saddling some new restaurants with the poor performance of a previous restaurant simply because it’s located at the same address, and provides no way for the state to analyze the most common food code violations.

• Inspection failure rates vary greatly from county to county. Restaurants in one county failed 13 percent of all inspections over the last three years, while in another county, virtually none failed.

Sarah Klein, senior staff attorney for food safety at the Center for Science in the Public Interest in Washington, D.C., said frequent restaurant inspections – ideally two to four a year, as some states require – are important to protect public health and restaurant owners. Moreover, those results need to be made available to the public, said Klein, who is leading the center’s effort to have letter grades based on inspection results posted in restaurant windows.

“Once every two years? That’s terrifying,” Klein said of Maine’s law. “Frequent inspections allow the public health department to show restaurants how to do it right so that people don’t get sick.”

Lisa Roy, manager of the state’s Health Inspection Program, said the state is ensuring safety by prioritizing its inspections. The team focuses on illness complaints, overdue inspections and follow-ups with restaurants that have failed previous inspections.

“I think our restaurants are very safe,” Roy said. “I feel comfortable with every other year. We’re always on top of problems and complaints. If there is a problem we’re going to follow up on it.”

Ensuring that restaurants across the state follow the best practices for handling, storing and serving foods is the responsibility of 11 health inspectors, who also are responsible for inspecting lodging establishments, body art studios and summer youth camps. Each inspector is responsible for 600 to 800 establishments in all.

Until 2012, Maine law required annual inspections of restaurants. But that was physically impossible for the small team of inspectors, which led to the quiet approval of a new law to require every-other-year inspections instead.

While apparently unknown to lawmakers at the time, the number of restaurants that were inspected because of consumer complaints had been steadily increasing for three years.

RISING COMPLAINTS

On Oct. 15, the Health Inspection Office received a complaint about the Deer Run Tavern at 365A Main St. in Yarmouth. The customer said the restaurant was not clean. The floors were sticky; one employee cooked, handled the money and served alcohol; and people were smoking outside with the door open.

Health inspector Joel Demers investigated the complaint three days later and was only able to substantiate one aspect of the complaint: The restaurant, which had not been inspected since 2010, was not clean.

Demers’ subsequent inspection uncovered several violations regarding cleanliness and sanitation, including a lack of hot water in the hand-washing sink, a dishwasher that was not dispensing sanitizer, a dirty meat slicer and George Foreman grill; uncovered food items; raw fish being stored over cooked items and vegetables; and unpackaged butter and cabbage stored in direct contact with a dirty refrigerator shelf.

The restaurant was deemed a public health hazard and recommended for closure. State records show it passed a follow-up inspection on Nov. 1 and was cleared to reopen.

However, the restaurant was open and serving food on Oct. 31 before it was fully reinspected by the state.

Roy said inspectors cannot force a restaurant to close, unless they work with the Attorney General’s Office to get a court order. “We can only recommend closure. Most establishments follow the Departments recommendations,” she said in an email.

The Deer Run Tavern is no longer in business, and the location is now the home of You Wanna Pizza Me, which opened about three months ago after extensive renovations that included all new equipment.

Demers, the inspector, said he gave verbal permission for the tavern to reopen the day after it closed. He said he made a note in the state’s inspection system, although there was no reference to that note in the follow-up inspection records reviewed by the Press Herald/Maine Sunday Telegram.

“The system isn’t ideal,” Demers said.

Consumer complaints like this are becoming more common throughout Maine. State officials don’t know why.

Roy speculated that people are becoming more aware of their food and the environment it is being served in. The state has not embarked on any education campaigns to encourage reports, she said.

“The public is more aware about food safety,” said Roy. “I really don’t know what to attribute it (the rise in complaints) to. Maybe it’s more than one thing.”

DATA HAVE LIMITATIONS

According to the state, complaints fall into 20 categories, including suspected cases of food-borne illness, sharp objects in food or injuries sustained while eating, and overall sanitation practices, to name a few.

Roy said limitations in the state’s database make it impossible to provide a variety of information relating to its inspection programs, including a breakdown of the most common complaints against restaurants.

Last year in Maine, 542 complaints were filed against the roughly 8,500 entities — restaurants, lodging facilities, campgrounds and body art studios — licensed by the state Health Inspection Program, according to figures provided by the state. More than 200 of those complaints were filed against restaurants.

The most common complaints among all licensed entities were poor sanitation practices, sharp objects in food or eating-related injuries, food-borne illness and hygienic practices. The types of complaints specifically against restaurants could not be broken out of the data, Roy said.

It’s not clear how many of the food-borne illness complaints have been substantiated, both because of limitations in state record-keeping and because it is difficult to prove a food-borne illness came from a restaurant meal.

“Typically, (complainants) think the last place they ate at made them ill,” Roy said. “It is very difficult to track it back to that (alleged) establishment.”

That appeared to be the case in January 2012, after several people complained about getting sick after eating at Petite Jacqueline, a Portland bistro nominated for a coveted James Beard award. Although the restaurant failed initial follow-up inspections, it was never forced to close and inspectors could not prove the restaurant made people sick.

A top state health official agreed that food-borne illnesses are difficult to trace back to their source.

In 2011, the most recent year for which data are available, there were 134 confirmed cases of salmonella in Maine and 28 cases of E. coli. Both figures were up slightly from the previous year, which saw 133 and 21 cases, respectively.

Maine’s case rate per 100,000 people for E. coli is 2.1, which is more than twice the 2011 national rate of 0.98. However, Maine’s case rate for salmonella is only 10.1, which is well below the 2011 national average of 16.47.

The Maine Center for Disease Control & Prevention tracks cases of food-borne illness and assists the inspection program with illness investigations involving clusters of unrelated people. But it can rarely determine which cases of food-borne illness are caused by restaurants and which are caused from other sources, said Dr. Stephen Sears, the state epidemiologist, because the gestation periods for certain diseases, such as salmonella, are too long to definitively identify the source, and investigations often rely on a person’s memory.

The Center for Science in the Public Interest in Washington, D.C., issued a report in 2008 saying 41 percent of all food-borne illness outbreaks from 1990 to 2006 could be traced to restaurant food.

The “Dirty Dining” report looked at restaurant inspection programs in 20 major U.S. cities and analyzed 16 years’ worth of national inspection data. The top five critical, or high-risk, violations, according to the report, were improper holding temperatures, inadequate hand washing, improper cooking, contaminated food contact surfaces and food from unsafe sources.

MOVING TO FEWER INSPECTIONS

The rise in complaints was not raised as an issue when the Legislature decided in 2011 to double the amount of time in between mandatory inspections.

Before the new law took effect in 2012, each establishment needed to be inspected once a year. But the state could not meet that annual inspection requirement with its limited number of inspectors.

Each inspector is responsible for an average of 700 establishments, meaning each inspector would have to check more than a dozen establishments a week along with follow-up inspections and complaint responses.

Since state inspectors are stretched thin, five municipalities — Portland, South Portland, Lewiston, Auburn and Lisbon — hire their own state-certified health inspectors to check restaurants and be more responsive to public complaints.

Still, the annual inspection requirement proved unattainable.

Last fall the Portland Press Herald/Maine Sunday Telegram investigated Portland’s restaurant inspections, and found that the city inspected only 49 of its roughly 700 eating establishments during the one-year period from August 2011 to August 2012.

The Legislature changed the law to make the annual inspection requirement once every two years as part of a bill that also reduced the number of inspections required for youth, summer and sports camps.

The bill, “An Act to Amend Laws Governing Licensure Compliance Methods for Camping Areas, Recreational Camps, Youth Camps, and Eating Establishments,” was unanimously voted out of the Health and Human Services Committee on its way to becoming state law.

Two legislators who served on the committee recalled the bill as focusing mostly on summer camps, most of which are nationally accredited through a process that made the state inspection requirement seem redundant.

Legislators had difficulty recollecting the bill’s effect on restaurants, which unlike youth camps, do not have a fallback accreditation process.

Former Rep. Meredith Strang Burgess, R-Cumberland, who co-chaired the committee and sponsored the bill, said the changes seemed to be a good way to bring the state into compliance with law, while enacting a business-friendly bill that reduced “over-regulation.”

“There was no pushback,” said Strang Burgess, who did not seek re-election last year. “It seemed to be logical.”

In written testimony submitted to the committee, Nancy Beardsley, director of the Division for Environmental Health in the Maine Center for Disease Control & Prevention, said the changes in inspection frequency better reflected the reality.

Beardsley noted that inspectors respond to as many as 400 complaints a year, including 100 food-borne illness investigations, but legislators could not recall a discussion about the impact of reducing the frequency of restaurant inspections would have on public health.

“With a full contingent of health inspectors, it is more realistic that inspections of all licensed establishments could be performed every two years,” Beardsley wrote at the time.

Strang Burgess was surprised to hear during a recent interview that complaints were rising at the time the law passed and rose by nearly 35 percent in 2012 (from 160 to 215) — the first year the new law was in effect.

Rep. Peter Stuckey, D-Portland, who still serves on the committee, was also surprised. Both he and Strang Burgess said it was appropriate to question whether there was a link between the law change and the spike in complaints.

“I would like to know whether there is a correlation,” Stuckey said.

ASSESSING INSPECTION FREQUENCY

It was not a request from the restaurant industry that led to the law change. In fact, the leader of the industry association said in a recent interview that he agrees with consumer advocates about the importance of having more frequent inspections.

Dick Grotton, the president and chief executive officer of the Maine Restaurant Association, said it’s important to have a collaborative relationship between inspectors and restaurant owners, and that both have the same goal of protecting public health.

Grotton said his restaurant members complain that they pay increasing license fees but rarely see an inspector in their establishments.

Increased license fees, which range from $125 to $225, have allowed the state to increase its budget for state inspections from $1.22 million in 2008 to $1.58 million in 2012. Although that additional revenue did not lead to the hiring of additional inspectors, the number of inspections of restaurants and other establishments also has increased, from 1,446 to 3,275 in the past three years.

Roy said the state has been able to increase its annual inspections by using tablet computers to file electronic reports from the field and by drafting clearer operating procedures to improve efficiency.

Even with the increases, inspectors are struggling to inspect establishments every two years.

There are 4,862 licensed eating establishment in Maine, Roy said. Last year, the state conducted 3,275 inspections, but those figures also include multiple inspections for some individual establishments. Inspectors also are responsible for hundreds of other inspections, including lodging establishments and tattoo parlors.

“The complaint I hear most frequently is they don’t see (inspection) people every two years,” Grotton said. “I think owner-operators are very aware that they don’t know everything they should know.”

Restaurant owners rely on inspections as a means of education, he said. Food safety is a high-stakes issue for owners, in terms of liability and reputation, Grotton said.

“The last thing any restaurant wants is to be doing something that has the propensity to make someone sick,” he said. “Once that happens, it’s hell to pay.”

The Center for Science in the Public Interest’s “Dirty Dining” report found that, even though most inspection departments were understaffed in 20 U.S. cities, the average inspection frequency was twice a year.

The ideal inspection frequency is two to four times a year, Klein said in an interview, so owners can improve employee training and understand aspects of the food code designed to prevent illness — such as properly using and maintaining cutting boards and storing hot and cold food properly.

“If they know they can be inspected several times throughout the year at an unannounced inspection, they’re much more likely to maintain those (best) practices all the time than if they know they have two years before their next inspection,” Klein said.

Rep. Stuckey said he used to run a day care in Portland in the 1970s that served food to children. He recalled the city sending in a health inspector once a month, which put the staff in a constant state of preparedness.

“You knew they were coming once a month, but you never knew when they were coming.” Stuckey said.

Portland’s recent experience appears to underscore the value of more frequent inspections.

There are about 700 eateries in Portland, but the city put restaurant inspections on the back burner for several years, conducting only 28 inspections in 2010. In 2011, the city hired a full-time health inspector and dramatically stepped up its oversight.

The inspector, Michele Sturgeon, who is known as a by-the-book inspector, said she found many had relaxed due to a lack of inspections. Nineteen of the 23 restaurants she inspected failed in 2011. In 2012, about 40 of 88 inspections were failures, including nine businesses that were closed as imminent health hazards.

As a result, the city began holding voluntary education sessions for restaurant owners struggling to comply with a 2001 food code. Next year’s budget proposes adding a part-time health inspector to share the workload.

BREAKING DOWN FAILURE RATES

A restaurant can fail its inspection for a variety of reasons, some more serious than others. A critical violation is defined as a probable health risk or something likely to pose a risk for contamination or illness, including not storing food at proper temperatures.

A restaurant can have as many as 13 violations, including three or fewer critical ones, and pass inspection. A restaurant with more than three critical violations, or more than 10 non-critical violations, fails but may stay open if enough violations can be corrected immediately. If the violations present a public health hazard, the restaurant is closed until the problems are corrected.

The state only began tracking which establishments failed their inspections three years ago, according to Roy.

Over the past three years, Maine restaurants failed 6.3 percent of all inspections. At least 46 restaurants statewide that were deemed imminent health hazards were closed until their violations were resolved.

A review of the violations that led to restaurant closures highlights the dangers of serving unsafe food.

Among the most common violations are a lack of knowledge of the food code, improper hot or cold storage of food, dirty food-contact surfaces, improper or lack of hand washing and storing food in a way that could contaminate it.

Last year, at least 16 restaurants were deemed imminent health hazards and forced to close, compared to 13 in 2011.

The Asia Eatery Restaurant in Paris was shut down in November, for example, after an inspector observed a dead mouse in a pool of grease on the floor next to the pork cooker, as well as mouse droppings and uncovered food. A month earlier, a pest company observed a dead mouse in a trap, according to the inspection report. The eatery passed a follow-up inspection a week later and has since reopened.

Pests were also a problem at the Fortune Fountain Restaurant in Farmington.

In November 2011, a customer complained about a bug in his/her drink. The health inspector investigated the complaint the following day, and recommended closure as an imminent health hazard for violations including flies, crawling insects, and dirty food contact surfaces and equipment. The storefront at 605 Wilton Road that housed Fortune Fountain is now the home of the Lotus Blossom Restaurant, which was also deemed an imminent health hazard in May 2012, according to state records. It has since passed three inspections. Last September, the Porthole Restaurant on Portland’s waterfront closed because of a serious rat infestation. It reopened in April under new ownership and after extensive renovations.

The Super Great Wall Buffet in South Portland was closed in 2011 after an inspector observed 24 violations, including cockroaches, moldy walls and rough cutting boards. Sturgeon, then a South Portland employee, wrote that she was kicked out of the establishment before the inspection was completed.

It passed a follow-up inspection the next day and reopened.

More often, restaurants that fail an inspection remain open while they work to fix problems.

Last year, 176 restaurants failed their inspections; that’s up from 167 in 2011.

GETTING THE WORD OUT

When a restaurant is closed by a health inspector in Maine, the establishment does not have to tell its customers why it is closed. And, if it fails an inspection but remains open, the customers have no way of knowing there could be problems unless they request a copy of the inspection from the state, town or the restaurant.

In the case of the Deer Run Tavern in Yarmouth, diners were not notified that food was being served in a facility previously deemed an imminent health hazard by the state and allowed to reopen before passing a complete reinspection.

“While we do not publicly acknowledge or post the reason why an establishment is closed, it has been our experience that word typically spreads,” said Roy, who oversees the state inspection program. “Whenever a person dines out, he or she needs to be active in assessing their surroundings and what he or she may witness. They may always contact our program to find out the status of an establishment if there is a question or complaint.”

Information needs to be passed on to consumers so they can make healthy decisions, said Klein, the advocate.

“The best way we found to do that is by providing restaurant inspections in the form of a letter grade that is easily understandable — usually comparable — in the front window of the restaurant so the consumer can make a dining decision while they are walking around,” Klein said.

Without making results known to the public in an easily digestible format, there is no need to even have an inspection program, Klein said.

“Restaurant inspections, unless the restaurant is closed, are largely the restaurateur’s hidden shame. No one ever knows about it,” she said.

Maine is one of only three states without some sort of inspection records posted online by a state, county or local inspection program, according to Food Safety News.

While posting inspection records online for the public to see is common in much of the country, both Klein and Grotton said they oppose requiring full inspection reports to be posted online.

Such reports are complex and difficult to understand, they said. They also need to be kept up to date so a bad score doesn’t haunt a restaurant that has made improvements, Grotton said.

Unlike Klein, however, Grotton also opposes posting letter grades at restaurants, saying they can be misunderstood.

“There are a thousand details, all of which go into making up your health score,” Grotton said. “And the public isn’t privy to all the details, so they should not be privy to the results.”

At least one study raises questions about the use of restaurant grades to promote food safety.

A study published in The Yale Law Journal in December looked at the inspection scoring practices of 10 jurisdictions in the country.

In San Diego, it found almost all restaurants received an “A,” rendering the grades meaningless. In New York City, inspection standards were inconsistent and individual restaurants’ scores varied greatly from year to year. The study didn’t find evidence that requiring restaurants to post grades reduced food-borne illnesses.

In Maine, for now, the only way to know a restaurant’s cleanliness record is to ask for the reports.

Roy, the manager of the state inspection program, said individual inspection reports can be requested through the state inspections office. Also, restaurants are required to keep a copy of their most recent inspection available for public review and present it upon request, though Roy said inspectors do not check compliance with this rule during their inspections.

When a reporter asked to see the latest inspection report for David’s in Portland’s Monument Square, an employee of the restaurant asked who she was and why she wanted it.

After identifying herself as a reporter and telling the employee that the restaurant is required to provide the report to anyone who asks for it, the employee still demanded to see identification and proof that the reporter worked for the newspaper, before getting owner David Turin.

Turin said he was not aware of the rule, but retrieved the latest inspection report, from Dec. 18, which said the restaurant passed.

“I’ve never had a customer ask me to see a restaurant inspection,” said Turin, who has owned 10 restaurants over the past 30 years.

Roy, the head of the state program, said the department someday would like to build an online database for inspections.

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